PEOPLE OF MI V THOMAS JAMES EARLS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 3, 2006
Plaintiff-Appellant,
v
No. 267976
Sanilac Circuit Court
LC No. 05-006016-FC
THOMAS JAMES EARLS,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Saad and Cooper, JJ.
SAAD, J. (dissenting).
I respectfully dissent because defendant has no reasonable expectation of privacy in his
banking records1 and because the relevant statute, MCL 76A.1 et seq, regarding the issuance of
investigatory subpoenas affords defendant neither standing nor rights under the statute.2
1
In United States v Miller, 425 US 435, 442-443; 96 S Ct 1619; 48 L Ed 2d 71 (1976), the
United States Supreme Court expressly held:
The depositor takes the risk, in revealing his affairs to another, that the
information will be conveyed by that person to the Government. This Court has
held repeatedly that the Fourth Amendment does not prohibit the obtaining of
information revealed to a third party and conveyed by him to Government
authorities, even if the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in the third party will
not be betrayed. [Id. at 442-443 (citations omitted).]
Further, our Supreme Court in People v Perlos, 436 Mich 305, 320, 329; 462 NW2d 310 (1990),
quoted with approval the above excerpt from Miller and adopted the holding and rationale of
Miller.
2
A careful reading of MCL 767A.1 et seq makes clear that the rights afforded under the statute
are granted to the institutions upon which the investigatory subpoenas are served. MCL 767A.1
through MCL 767A.9 exhaustively detail the rights of the institutions subpoenaed and afford no
rights to a person in defendant’s position, whose records are at the subpoenaed bank. The only
rights afforded to defendant under MCL 767A et seq, are certain discovery rights once a charge
has been filed against defendant. MCL 767A.5(6).
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Moreover, even if MCL 767A.1 et seq could be read to grant defendant standing or rights under
the statute, the prosecutor’s admittedly mistaken failure here to abide by the statute does not
warrant exclusion of the evidence, defendant’s banking records.3 Under Michigan case law, the
“drastic remedy” of excluding evidence that would otherwise support a criminal conviction
should only be applied to constitutional violations, absent here, or to a violation of a statute, but
only where the Legislature has evidenced its intent that the exclusionary rule should apply, also
absent here.
Accordingly, I respectfully dissent.
/s/ Henry William Saad
3
People v Hawkins, 468 Mich 488, 500; 668 NW2d 602 (2003). Again, assuming the statute
was violated with respect to defendant,
“the drastic remedy of exclusion of evidence does not necessarily apply to a
statutory violation. Whether the exclusionary rule should be applied to evidence
seized in violation of a statute is purely a matter of legislative intent. [Id.
(emphasis added).]
The aforementioned discussion of our case law is equally applicable to the records subpoenaed
from the telephone company.
-2-
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